Note 16, Page 277: TSCA Reform Legislation Signed into Law in June 2016

The casebook mentions that Congress is considering legislation to reauthorize and to reform the Toxics Substances Control Act. On June 24, 2015 the U.S. House of Representatives passed the TSCA Modernization Act (H.R. 2576) by a vote of 398-1. The bill included a comprehensive overhaul of the Toxic Substances Control Act (TSCA). It was supported by the chemical industry, and some of the environmental community. The Environmental Defense Fund, which previously endorsed a TSCA reform bill crafted by Republican Senator David Vitter and the late Democratic Senator Frank Lautenberg, supported the legislation, but some other environmental groups did not believe it was a substantial enough improvement over current law to warrant their support. The bill would require more testing of chemicals and replace the requirement in Section 6 of TSCA that regulation employ the “least burdensome” regulatory option, while requiring EPA to “determine whether technically and economically feasible alternatives that [are more beneficial to] health or the environment . . . will be available as a substitute.” On Dec. 17, 2015 the U.S. Senate approved on a voice vote its own version of TSCA reform legislation called the Frank R. Lautenberg Chemical Safety for the 21st Century Act. There were some significant differences in the bills passed by each house so they had to be reconciled in 2016.

On June 7, 2016 the U.S. Senate by a voice vote passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The legislation had passed the U.S. House by a vote of 403-12 on May 24, 2016. President Obama signed the legislation into law on June 22, 2016. This is the first comprehensive updating of TSCA since it was first adopted in 1976. The legislation is the product of a bipartisan agreement initially announced in May 2013 by Democratic Senator Frank Lautenberg and Republican Senator David Vitter. The final legislation is named in tribute to Lautenberg, who died suddenly less than two weeks after reaching the agreement. New Mexico Senator Tom Udall became the chief Democratic champion of the legislation after Lautenberg’s death. The legislation requires EPA to set risk-based priorities for testing and evaluation of chemicals and it requires the chemical industry to contribute funding to support such efforts. It was supported by both the chemical industry and major environmental groups, including the Environmental Defense Fund. A few environmentalists and some state officials complained that the legislation was not stringent enough and could preempt state regulations. However, it is widely agreed that the legislation was far better than the existing law, which puts too great a burden on EPA to use cost-benefit to justify regulation and preempts state regulation of chemicals regulated by EPA.

On June 29, 2015, the U.S. Supreme Court decided Michigan v. EPA. A copy of the decision is available online at: http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf. By a 5-4 majority, the Court held that the words “appropriate and necessary” in § 112(n)(1)(A) of the Clean Air Act require EPA to consider costs before deciding to regulate emissions of mercury and air toxics from power plants. In his majority opinion for the Court, Scalia held that EPA’s subsequent consideration of costs when it promulgated the mercury and air toxics regulations was insufficient to comply with the statute. An edited copy of the decision is available in our 2015-16 Statutory and Case Supplement.

While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision. EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported. Emily Atkin, What Everyone Is Getting Wrong About the Supreme Court’s Mercury Pollution Ruling, Climate Progress, June 29, 2015 (http://thinkprogress.org/climate/2015/06/29/3675141/no-supreme-court-did-not-invalidate-mercury-rule/). Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated. Moreover, virtually all the power plants that did not intend simply to shut down in response to the regulations are now in compliance with them (the regulations were not stayed pending judicial review). Thus, there is now a strong consensus that the decision, while unfortunate, is certainly not a huge loss for EPA. See, e.g., Alex Guillén, Supreme Court’s Ruling Comes Too Late for Coal, Politico, June 29, 2015 (http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissions-obama-environment-119541.html); Jack Lienke, Here’s Why You Shouldn’t Worry About the Supreme Court’s Latest Environmental Ruling, Grist, June 30, 2015 (http://grist.org/climate-energy/heres-why-you-shouldnt-worry-about-the-supreme-courts-latest-environmental-ruling/?utm_source=twitter&utm_medium=tweet&utm_campaign=socialflow). On remand, the D.C. Circuit decided on Dec. 15, 2015 not to vacate the mercury rule that was the subject of the successful challenge in the Supreme Court. Because EPA already has extensively considered the cot of the mercury regulations, it should have little difficulty complying with the Michigan v. EPA decision.